Shi Xiang Lian v. Holder

12-4761 Lian v. Holder BIA Christensen, IJ A200 924 515 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. 1 At a stated term of the United States Court of Appeals 2 for the Second Circuit, held at the Thurgood Marshall United 3 States Courthouse, 40 Foley Square, in the City of New York, 4 on the 3rd day of March, two thousand fourteen. 5 6 PRESENT: 7 JOSÉ A. CABRANES, 8 RICHARD C. WESLEY, 9 CHRISTOPHER F. DRONEY, 10 Circuit Judges. 11 12 _____________________________________ 13 14 SHI XIANG LIAN, 15 Petitioner, 16 17 v. 12-4761 18 NAC 19 ERIC H. HOLDER, JR., UNITED STATES 20 ATTORNEY GENERAL, 21 Respondent. 22 _____________________________________ 23 24 FOR PETITIONER: Scott Eric Bratton, Cleveland, OH. 25 26 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney 27 General; Anthony W. Norwood, Senior 28 Litigation Counsel; Meadow W. Platt, 29 Trial Attorney, Office of 30 Immigration Litigation, United 31 States Department of Justice, 32 Washington, D.C. 1 UPON DUE CONSIDERATION of this petition for review of a 2 decision of the Board of Immigration Appeals (“BIA”), it is 3 hereby ORDERED, ADJUDGED, AND DECREED that the petition for 4 review is DENIED. 5 Shi Xiang Lian, a native and citizen of China, seeks 6 review of a November 8, 2012, decision of the BIA affirming 7 an Immigration Judge’s (“IJ”) August 25, 2011, denial of 8 asylum, withholding of removal, and relief under the 9 Convention Against Torture (“CAT”). In re Shi Xiang Lian, 10 No. A200 924 515 (B.I.A. Nov. 8, 2012), aff’g No. A200 924 11 515 (Immig. Ct. N.Y. City Aug. 25, 2011). We assume the 12 parties’ familiarity with the underlying facts and 13 procedural history of this case. 14 Under the circumstances of this case, we have reviewed 15 both the BIA’s and IJ’s decisions. See Yun-Zui Guan v. 16 Gonzales, 432 F.3d 391, 394 (2d Cir. 2005). The applicable 17 standards of review are well-established. See 8 U.S.C. 18 § 1252(b)(4)(B); see also Xiu Xia Lin v. Mukasey, 534 F.3d 19 162, 165-66 (2d Cir. 2008). 20 For asylum applications, like Lian’s, governed by the 21 REAL ID Act, the agency may, “[c]onsidering the totality of 22 the circumstances,” base a credibility finding on 23 inconsistencies in the applicant’s statements and other 2 1 record evidence without regard to whether they go “to the 2 heart of the applicant’s claim,” demeanor and responsiveness 3 to questioning, and the “inherent plausibility” of the 4 applicant’s account. 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia 5 Lin, 534 F.3d at 163-64. Substantial evidence supports the 6 agency’s adverse credibility determination. 7 First, we defer to the IJ’s findings regarding 8 demeanor. The agency made a preliminary finding that Lian’s 9 demeanor suggested he was not testifying from actual 10 experience, but rather, from a scripted account of events. 11 This type of finding is “paradigmatically the sort of 12 evidence that a fact-finder is best positioned to evaluate.” 13 Li Zu Guan v. INS, 453 F.3d 129, 140 (2d Cir. 2006). 14 The adverse credibility determination is further 15 supported by the IJ’s identification of inconsistencies. 16 First, Lian was inconsistent regarding the date of an 17 alleged detention, testifying that he was detained on June 18 25, but stating in his application that his detention began 19 on June 20. A second inconsistency involved the reason he 20 was released from a second detention. Lian testified that 21 he was detained a second time when authorities found him and 22 his pregnant wife in hiding, but when asked why he was 23 released, Lian stated that authorities had located his wife. 3 1 The agency was not required to accept Lian’s explanation 2 that these inconsistencies were a result of his nervousness 3 and purported confusion over the scope of the questions 4 being asked. See Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d 5 Cir. 2005). 6 The agency’s implausibility findings provide additional 7 support as “[i]t is well settled that, in assessing the 8 credibility of an asylum applicant’s testimony, an IJ is 9 entitled to consider whether the applicant’s story is 10 inherently implausible.” Wensheng Yan v. Mukasey, 509 F.3d 11 63, 66 (2d Cir. 2007). First, the agency reasonably 12 questioned the plausibility of Lian’s assertion that his 13 wife’s IUD “fell out” twice, and on each occasion, she 14 became pregnant. Second, the agency reasonably doubted the 15 plausibility of Lian’s account that he remained detained for 16 17 days because family planning officials wanted him to 17 divulge his wife’s location given that she was hiding at her 18 parents’ home and could easily have been located. Third, 19 the agency properly questioned Lian’s testimony that he 20 received medical treatment for injuries inflicted in 21 detention as he gave contradictory statements about where he 22 received treatment and how he located a doctor. In light of 23 the lack of credible testimony regarding the alleged 4 1 injuries and medical treatment, the agency also properly 2 considered the lack of corroborating medical evidence. See 3 Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007). 4 Given Lian’s problematic demeanor, the inconsistencies 5 and implausibilities in his testimony and application, and 6 the lack of corroborating evidence, all of which relate to 7 his allegations of past harm, the agency’s adverse 8 credibility determination is supported by substantial 9 evidence, and is dispositive of Lian’s claims for asylum, 10 withholding of removal, and CAT relief. See Xiu Xia Lin, 11 534 F.3d at 167; see also Paul v. Gonzales, 444 F.3d 148, 12 156 (2d Cir. 2006). 13 For the foregoing reasons, the petition for review is 14 DENIED. As we have completed our review, any stay of 15 removal that the Court previously granted in this petition 16 is VACATED, and any pending motion for a stay of removal in 17 this petition is DISMISSED as moot. Any pending request for 18 oral argument in this petition is DENIED in accordance with 19 Federal Rule of Appellate Procedure 34(a)(2), and Second 20 Circuit Local Rule 34.1(b). 21 FOR THE COURT: 22 Catherine O’Hagan Wolfe, Clerk 23 24 5